A populist myth about immigration courts and public opinion: evidence from the US and Sweden

The concept of mass immigration is politicized.
Rather than registering reality objectively, it is used to further particular
interests of the state as well as powerful non-state organisations.

A group of EU migrants in Malmö live in caravans and simple shelters in the winter cold at a demolition site at the Nobel Road - Industrial Street in Malmö. February, 2015. News Øresund, Malmö, Sweden.www.newsoresund.org. Some rights reserved.Contemporary
populist movements on the right in Sweden and the US believe in a collusion
between elite institutions such as courts and marginalized groups such as
immigrants. The “people”, they believe, are really against immigration. Courts
therefore go against the will of the people.

These populist
movements claim that such a collusion poses an existential threat
to their respective nations by furthering mass immigration. And they see
themselves as the only ones that can save
their nation.

Screenshot of Breitbart front page headline, July 9, 2017.

Some
immigration scholars even argue that while popular opinion in western countries
favours restrictionism, the autonomy and human rights concerns of the judiciary
has ensured the permanency of mass immigration.

But the available
evidence from the US and Sweden presents a different picture. Immigration
courts are influenced by politics and ideology and exhibit significant
variation in decision outcomes. Popular sentiment on immigration is mixed and shifting
but is far from uniformly anti-immigrant.

Variation and ideology in immigration court decisions

In asylum applications
that end up in immigration court, we find that the judiciary is far from uniformly
trigger happy to approve cases. In the United States, major variation exists
between liberal states, such as California, and conservative states, such as
Georgia. Between 2012-2017 immigration judges in Atlanta, Georgia had a 79-91% denial
rate, while those in San Francisco, California exhibited a much more fluctuating
rate between 9-94%. But even in San Francisco, considered to be the pinnacle of
the American progressive city, there were major differences between individual
judges. Out of 21 judges, four had a denial rate of over 50%, while seven had a
rejection rate below 20%.

Statistics aside,
American immigration courts have structural features that can undermine due
process. Dana Marks, a veteran immigration judge in San Francisco, described
some of these features to Mother
Jones magazine: “the federal rules of evidence don’t
apply, the judges don’t have contempt authority over attorneys… We don’t have
court reporters.”

In Sweden, an
executive officer at the Swedish Migration Agency told me that less than 5% of
all rejected asylum decisions are overturned in court. Two recent studies on
Swedish immigration courts partly explain why this is the case. The economist
Linna Martén has demonstrated
that political party affiliation influences the decision-making of immigration jury
members. Simply put, jury members from conservative parties tend to reject
asylum seekers’ appeals more than those from leftist parties.

The legal scholar Livia
Johannesson has shown that Swedish immigration courts, like American ones, do
not fully measure up to the strictures of due process. Asylum seekers in court
are structurally at a disadvantage in that they lack key knowledge of laws and
procedures and are met with distrust by the court. In general, asylum seekers
suffer from somewhat arbitrary court interpretations of what constitutes a “credible”
narrative of persecution, which is the key piece of evidence in Swedish
asylum cases.

Public opinion on immigration is complex and changing

With regard to the
popular support of restrictionism, we find a complex and shifting picture. In a
2014 European Social Survey the majority of Swedish respondents believed that
immigration should be allowed to a “great” or “pretty great” extent. However,
by late 2016, following the “refugee crisis” of 2015, a majority
in the polls wanted to see a reduced intake of refugees.

In 2015, a Public
Religion Research Institute national survey found that nationally 55% of the
American population believe that “immigrants today strengthen our country
because of their hard work and talents”, while 36% believe that “immigrants
today burden our country because they take our jobs, housing, and healthcare”.
Unsurprisingly, there were significant variations between states. In 34 states, including California and Texas,
over
50% responded that they believe immigrants strengthen the country.

When it comes to
Syrian refugees, the same research institute found in 2015 that: “Despite heightened
concerns about terrorism – and political rhetoric linking Muslim refugees to
the threat of terrorism – a majority (53%) of Americans support allowing
Syrian refugees to come to the US provided they go through a security
clearance process”.

In 2016, the
same Institute found that 62% of
Americans believe that “immigrants who are currently living here illegally
should be allowed a way to become citizens provided they meet certain
requirements”, while 15% believe that they should become permanent legal
residents but not citizens. 19% believe that “illegal immigrants should be
identified and deported”.

Screenshot: Daily Mail headline, March 5, 2016.

Mass
immigration is a politicized concept

According to immigration
scholar Christian Joppke, the pro-immigration stance of courts explains why
we continue to see mass immigration in the west even though there is a popular
demand to bring it to a halt. But this far too neat explanation is
not borne out by the evidence. Moreover, it takes for granted that the concept
of mass immigration is an innocent empirical description, which is not the case.

To begin with, it
is questionable whether “mass” is an accurate word to describe the numbers of
immigrants who arrive in western countries every year. Even at its worst, the
number of asylum seekers in the EU during the refugee crisis of 2015 led to increases
in immigration population by at most 1.5 percentage points in countries
like Sweden and Germany. In the United States, immigration between 2010 and
2016 led to an increase
in the immigrant population that was less than one percentage point.

Then there is the
fact that western states are far from powerless in regulating the numbers of
immigrants that can enter their territory. The Swedish government’s recent
introduction of border controls and tougher asylum laws effectively brought the
number of new asylum seekers to desirable
levels. The number of border patrol agents in the US has
increased from 3,200 in 1986 to 19,437 in 2017. Deportations of immigrants
have been known
to exceed one million per year since the 1980s.

Clearly the
concept of mass immigration in general, and mass immigration as a threat in
particular, is politicized. Rather than merely registering reality objectively,
it is used to further particular interests of the state as well as powerful
non-state organisations, such as private corporations that profit from the detention and monitoring of immigrants.

About the author

Admir Skodo is a Researcher at the Swedish South Asian Studies Network (SASNET) at Lund University.

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